State v. Dobson

Harwell, Justice:

An Oconee County jury convicted appellant Ned Truette Dobson, Jr., of reckless homicide. The trial judge sentenced him to imprisonment for four years, suspended upon service of one year and probation for five years. We reverse.

On July 16,1981, Leonard B. Rogers was killed in a single vehicle accident on a mountain road near Walhalla. Appellant was the driver of the vehicle, a British jeep, and Rogers was a passenger. Appellant was subsequently charged with reckless homicide pursuant to S. C. Code Ann. § 56-5-2910.

*38Under the Code, “when the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others,” the driver is guilty of reckless homicide.

Appellant asserts that the trial judge erred in refusing to direct a verdict of acquittal or a judgment notwithstanding the verdict. He argues that the State failed to prove a reckless act on his part which was the proximate cause of the accident. Instead, he claims that the accident’s cause was a mechanical malfunction unrelated to his drinking while driving.

In reviewing the denial of a motion for directed verdict or to set the verdict aside, the judge must view the evidence in a light most favorable to the State. Any evidence, direct or circumstantial, reasonably tending to prove the guilt of the accused, creates a jury issue. State v. Perry, 309 S. E. (2d) 9 (S. C. 1983). However, when the case rests entirely on circumstantial evidence, a directed verdict is proper when the evidence fails to positively prove the guilt of the accused to the exclusion of any other reasonable hypothesis. State v. Stewart, 278 S. Ct. 296, 295 S. E. (2d) 627 (1982).

The sole evidence from which recklessness by appellant could be inferred is the uncontradicted testimony that appellant drank beer during the hours preceding the accident and while he was driving the jeep. The State introduced no evidence that appellant drove with excessive speed prior to or at the time of the accident; nor was there evidence of a failure to maintain a proper lookout.

Even if a finding of recklessness were warranted by the evidence of appellant’s intoxication, the State failed to meet the circumstantial evidence test in showing that this recklessness was the proximate cause of the accident. Appellant introduced expert testimony that the locking of the left front wheel caused the accident. Appellant’s expert concluded that the evening of driving the jeep over rocky creek beds, stumps, and other rugged terrain caused the mechnical malfunction.

The experts for both sides agreed that the tire mark on the road was not a skid mark resulting from an application of brakes. The record supported an inference that the mark was made when the tire was dragged a few feet after the wheel locked. Furthermore, the record did not reveal that the jeep ever left the highway; it apparently remained on the proper *39side of the center stripe. The Owner’s Manual specified that the j eep would turn over at 30 m.p.h. The Testimony indicated that the jeep was traveling slightly above 30 m.p.h. (within the 35 m.p.h. speed limit).

Although the State’s expert contradicted appellant’s theory regarding the cause of the accident, the theory is a reasonable hypothesis. The record contains no other explanation for the overturning of the jeep. The evidence was simply too speculative to submit the reckless homicide issue to the jury.

Accordingly, we reverse.

Reversed.

Ness and Gregory, JJ., concur.